Carlson v. Am. Int'l Grp., Inc.

• Decision Date: 02 July 2015
• Docket Number: 835 CA 13-01599
• Citation: Carlson v. Am. Int'l Grp., Inc., 2015 NY Slip Op 5816, 130 A.D.3d 1477, 16 N.Y.S.3d 637 (N.Y. App. Div. 2015)
• Parties: Michael J. CARLSON, Sr., Individually and as Administrator of the Estate of Claudia D'Agostino Carlson, Deceased and as Assignee of William Porter, Plaintiff–Respondent, v. AMERICAN INTERNATIONAL GROUP, INC., et al., Defendants, and American Alternative Insurance Co., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1477

16 N.Y.S.3d 637

2015 N.Y. Slip Op. 05816

Michael J. CARLSON, Sr., Individually and as Administrator of the Estate of Claudia D'Agostino Carlson, Deceased and as Assignee of William Porter, Plaintiff–Respondent

v.AMERICAN INTERNATIONAL GROUP, INC., et al., DefendantsandAmerican Alternative Insurance Co., Defendant–Appellant.

835 CA 13-01599

Supreme Court, Appellate Division, Fourth Department, New York.

July 2, 2015.

Rubin, Fiorella & Friedman LLP, New York City(Paul Kovner of Counsel), for Defendant–Appellant.

Brown Chiari LLP, Lancaster (Edward J. Markarian of Counsel), for Plaintiff–Respondent.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.

OpinionMEMORANDUM:

Plaintiff commenced this action pursuant to Insurance Law § 3420(a)(2) to collect on certain insurance policies after a second amended judgment against MVP Delivery and Logistics, Inc.(MVP) and William Porter was entered upon a jury verdict (seeCarlson v. Porter[appeal No. 2], 53 A.D.3d 1129, 861 N.Y.S.2d 907lv. denied11 N.Y.3d 708, 868 N.Y.S.2d 601, 897 N.E.2d 1085 ).DefendantAmerican Alternative Insurance Co.(AAIC) issued a commercial umbrella policy to Airborne, Inc. and later changed the named insured to DHL Express, Risk Management (DHL).AAIC cross-moved to dismiss, inter alia, the first cause of action of the complaint against it, which alleged that AAIC was responsible to plaintiff for payment of the judgment pursuant to Insurance Law § 3420(a)(2) and (b).

Supreme Court erred in denying that part of the cross motion.“[T]he right to sue a tortfeasor's insurance company to satisfy a judgment obtained against the tortfeasor” exists only pursuant to Insurance Law § 3420(Lang v. Hanover Ins. Co.,3 N.Y.3d 350, 352, 787 N.Y.S.2d 211, 820 N.E.2d 855 ).Here, plaintiff may not recover against AAIC pursuant to section 3420(a)(2) because the policy was not “issued or delivered in this state”(id. ).The parties and the court have improperly conflated the phrase “issued or delivered” with “issued for delivery,” which was used in the former version of Insurance Law § 3420(d), and therefore the definition of “ issued for delivery” is not relevant here (seePreserver Ins. Co. v. Ryba,10 N.Y.3d 635, 642, 862 N.Y.S.2d 820, 893 N.E.2d 97 ).The policy here was issued in New Jersey and delivered in Seattle, Washington, and then in Florida.It was not issued or delivered in New York, and therefore the first cause of action of the complaint against AAIC must be dismissed (cf.American Cont. Props. v. National Union Fire Ins. Co. of Pittsburgh,200 A.D.2d 443, 446–447, 608 N.Y.S.2d 807 ).

Contrary to plaintiff's alternative contention (seeParochial Bus. Sys. v. Board of Educ. of City of N.Y.,60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ), he may not seek payment of the judgment against AAIC pursuant to the MCS–90 endorsement.That federally-mandated endorsement provides, inter alia, that “the insurer ... agrees to pay ... any final judgment recovered against the insured”(49 CFR 387.15;seePierre v. Providence Washington Ins. Co.,99 N.Y.2d 222, 225–226, 228, 754 N.Y.S.2d 179, 784 N.E.2d 52 ).In Pierre,the Court held that any entity meeting the insurer's definition of an “insured” under the policy qualified as an “insured” under the MCS–90 endorsement (id. at 230–231, 754 N.Y.S.2d 179, 784 N.E.2d 52 ).After that decision was rendered, the Federal Motor Carrier Safety Administration (FMCSA), which regulates the interstate trucking industry, defined the term “insured” on the MCS–90 endorsement as the named insured only (see70 Fed Reg 58065–58066 ).Insurance companies had sought regulatory guidance from FMCSA in response to federal and state court decisions, including Pierre, regarding the definition of the term “insured” as used in the MCS–90 form (see70 Fed. Reg. 58066 ).FMCSA stated that form MCS–90 was “not intended, and do[es] not purport, to require insurance companies or sureties to satisfy a judgment against any party other than the motor carrier named in the endorsement or its fiduciary”(id. ).It is well settled that “[a]n agency's interpretation of its own regulation ‘is entitled to deference if that interpretation is not irrational or unreasonable’ ”(Matter of IG Second Generation...